Biden Administration says there’s no need for emergency relief over vaccinate or test ETS

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By Pamela Wolf, J.D.

The Biden Administration is asking the Fifth Circuit to slow down, in opposition to the temporary stay that the appeals court issued on November 6, halting OSHA’s interim rule establishing an emergency temporary standard (ETS) requiring either COVID-19 vaccination or weekly testing and mask wearing for private employers with at least 100 employees (see Businesses, five states obtain temporary stay of Biden Administration’s private employer vaccine mandate, November 8, 2021).

In a November 8 letter to the Clerk of Court for the Fifth Circuit, the Justice Department apprised the court that a dozen petitions to review the same ETS have been filed in the Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits. “The United States expects the multi-circuit lottery to take place on or about November 16, after which all petitions for review will be consolidated in one court of appeals responsible for deciding these petitions and considering or reconsidering any stay orders,” the DOJ said.

Extraordinary circumstances. As the federal government framed it in its opposition to the petitioner’s emergency stay motion, OSHA was faced with an extraordinary pandemic and a serious threat to employees at the time it issued the ETS “to address the grave dangers posed by COVID-19 in the workplace.” The ETS gives employers the option of requiring vaccination or offering their employees the option to mask and test, the Biden Administration pointed out, also noting that the ETS reflects OSHA’s “expert judgment that these measures are necessary to mitigate COVID transmission throughout America’s workplaces.”

Why is emergency relief necessary? In its opposition, the government questions why the emergency relief sought by the petitioners is necessary. Most of the harms that the petitioners allege are purportedly at least one month off, and many harms relate to a testing requirement that is not effective until January 2022.

The petitioners assert little prospect of harm until December 7, which is 28 days prior to the January 4, 2022 compliance date for the ETS, the government observed. Thus, there is no need to address the petitioners’ stay motions now. The appeals court thus should lift its administrative stay and allow the matter to proceed under the process that Congress set forth for judicial review of OSHA standards, according to the Administration.

Multidistrict litigation process. That process contemplates that litigation over the ETS will soon be consolidated in one federal court of appeals, the government noted. The Judicial Panel on Multidistrict Litigation will “random[ly] designate” one federal circuit from among those where petitions were filed within 10 days of the ETS’s issuance. All other courts will be required to transfer proceedings to that court. That process is expected to occur around November 16, which is 21 days before the December 7 date that the petitioners allege is the earliest date that any employee could be required to receive a vaccine, and 51 days before employees would be required to start testing.

Further, the federal court chosen to adjudicate the ETS-related matters will have enough time to rule on any preliminary motions, the opposition filing states. “Because ‘considerations of comity’ require ‘courts of coordinate jurisdiction and equal rank’ to ‘avoid the waste of duplication’ and ‘avoid rulings which may trench upon the authority of sister courts,’” the Fifth Circuit should decline to act in this emergency posture, the government argues.

Not likely to succeed on the merits. The government also contends that the petitioners are not likely to succeed on the merits because their arguments are foreclosed by precedent, inconsistent with the statutory text, and contrary to the considerable evidence that OSHA analyzed and discussed when issuing the Standard.

The petitioners have also allegedly failed to show that their claimed injuries outweigh the harm of staying an ETS that will “save thousands of lives and prevent hundreds of thousands of hospitalizations.” According to OSHA’s detailed analysis of the impact of the ETS, a stay would likely cost dozens or even hundreds of lives per day. On the other hand, the injuries asserted by the petitioners “are speculative and remote and do not outweigh the interest in protecting employees from a dangerous virus while this case proceeds,” the Administration argues.

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